The Fault is in Our Constitution

Sandy Levinson

As I've been pondering over this weekend about the (in)appropriateness (as distinguished simply from the impolitic aspects) of using the fuhrerhprinzip analogy to understand our own present political situation, it occurred to me that I'm in the embarrassing position of not understanding my own book well enough. That is, as everyone knows by now, I've recently published Our Undemocratic Constitution, which includes a vigorous critique of various aspects of Article II (as well as the Article I assignment of a presidential veto power, the subject of an article in this week's New Republic). But it seems to me that the Constitution, so bad in so many respects, also helps to explain why we end up with a distinctively American version of presidentialism that requires no recourse to the baleful influence of Leo Strauss and his connection with Weimar.

The argument focuses on two aspects of the Constitution, both of which made perfectly good sense at the time, both of which are dysfunctional inn 2006. The first is that the president, of course, is head of state, the recipient of all sorts of emotions attached to the flag and other symbols of the nation. Hail to the Chief is not something we would play for what Ross Perot would usefully call our most important employee. It is something more suitable for a monarch, and that is what the Constitution in effect creates. On top of this is the consequence of the rigidly fixed term of office. As the saying goes, whoever is president is, subject to death or impeachment, neither of them likely or desirable, "the only president we have" until the next inauguration day. Basic cognitive dissonance theory would predict that anyone stuck in such a relationship would overlook deficiencies and try desperately to reassure oneself that things will turn out all right. But, of course, it isn't quite so simple, because one has to factor in something that is NOT part of the original Constitution and, indeed, was by-and-large feared by its designers, the reality of a party system. Democrats have no incentive to glorify George Bush, nor did Republicans have any similar incentives with regard to Bill Clinton. But, of course, the political party of whom the president is the (unreplaceable) leader has every incentive, psychological as well as political, to be loyal once the alternative is viewed as the prospect of losing power to the dreaded opposition. (My favorite version of Lord Acton's dictum is the variation coined by John P. Roche: "Power corrupts, and the prospect of losing power corrupts absolutely.")

The fuhrerprinzip, at least with regard to Hitler, was presumably based on charismatic authority. Moreover, it was designed in effect to overthrow the existing political order, given that the Chancellor was not head of state. That honor remained, as I understand Weimar, with the President, who was supposed to be in some sense "above politics." (Obviously, I stand ready to be corrected on my understanding of German politics.) I presume that no one would ascribe Republican loyalty to George W. Bush as resting on his charisma. Nor is it part of an attempt to overthrow the basics of the American political order inasmuch as presidentialism of one kind of another has been a constant of American politics from quite near the beginning. Before, though, there might have been certain pressures against presidentialism going "too far," not least becasue political parties were more "loose-tent" coalitions (especially among the Democrats) and less united. For better and worse, we now have much more ideologically united parties, at least as measured by the willingness of any particular member of Congress to stray too far from the party leadership. So what explains the dismaying abdication of independent judgment by House and Senate Republicans is all too easily predicted by the hard-wired features of our own constitutional structure. And, of course, one can explain the Democrats who voted for the bill largely on David Mayhew's argument that the desire to be re-elected takes precedence over almost any other value. From this perspective, probably the most disgusting vote was that of Frank Lauchtenberg, who is not up for re-election and who is sufficiently old that he should be thinking of "legacy." But perhaps he saw giving away his vote (and his conscience?) as a way of helping his highly vulnerable colleage, Sen. Menendez, who had more Mayhewian reasons for crossing the aisle.

If, as I have been arguing repeatedly, our system allowed Republicans to dump their party leader/president, I am confident that George W. Bush would join Margaret Thatcher (and, shortly, Tony Blair) on the dustbin of history even as another Republican (John McCain?) would take the helm. But that is not our system, with all sorts of psychological and political consequences. (I have, incidentally, no good answer for the "head of state" problem. I don't support reverting to a monarchy, nor can I easily imagine electing two "presidents," one as head of government, the other as ceremonial head of state. But surely we could stop playing "Hail to the Chief" and otherwise treating the president as quasi-royalty.)
Posted 12:31 PM by Sandy Levinson [link]